Equal Protection and the Pregnancy Leave Case

EQUAL PROTECTION AND THE PREGNANCY LEAVE CASE

Cases challenging employment practices relating to mandatory preg-nancy leave for public employees' have reached courts of appeal in fivecircuits; 2 all five circuits have applied a rational relation test to the regula-tion attacked; three circuits found such regulations valid under the tradi-tional rational relation test,3 and two circuits, invalid4 under the new"substantial rationality" test developed in recent Supreme Court equal pro-tection cases.5 Two of these pregnancy leave cases will be heard before theSupreme Court of the United States.6

The preliminary issue that arises in these cases is whether or not man-datory pregnancy leave rules classify by sex and thereby constitute sex dis-crimination. While some circuits state that such rules do not classify bysex, others take the position that any rule that applies to only one sexdiscriminates against that sex. Most judicial attention has been spent uponthe threshold matters of whether or not a classification has been created;the courts tend to gloss over the more complex problem of which equalprotection standard ought to apply, if a classification by sex is found.

Plaintiffs in these cases generally present arguments that women shouldbe given suspect classification treatment and that pregnancy leave rules

I The cases analyzed deal with pregnancy leave rules as applied to public employees. The

pregnancy leave policies of private business are covered by Title VII of the Civil RightsAct of 1964, 42 U.S.C. § 2000e (1964). Pursuant to this act the Equal Employment OpportunityCommission has adopted a rule prohibiting pregnancy leave disability rules, 29 C.F.R. §1604.10(b), 37 Fed. Reg. 6837 (Apr. 5, 1972). The statutory standard set forth in theseregulations is strict and provides more protection than a compelling state interest standardof review. Thus the constitutional issues only arise through challenges of public employeeswho are not covered by Title VII, and for this reason, the cases which have been decidedon the statutory ground are beyond the scope of this note. Title VII of the Civil RightsAct has since been amended to cover public schools and state agencies, 42 U.S.C. § 2000e (a),P.L. 92-261, 86 Stat. 103 (1972). This congressional section moots the pregnancy leavecase arising after the Amendment.

2 Green v. Waterford Bd. of Educ., 473 F.2d 629 (2d Cir. 1973); Cohen v. Chesterfield

County School Bd., 474 F.2d 395 (4th Cit. 1973) rev'g on rehearing en banc, 467 F.2d262 (4th Cir. 1972), cert. granted, 41 U.S.L.W. 3565 (U.S. Apr. 23, 1973); La Fleur v.Cleveland Bd. of Educ., 465 F.2d 1184 (6th Cir. 1972), cert. granted, 41 U.S.L.W. 3565(U.S. Apr. 23, 1973); Schattman v. Texas State Employment Comm'n, 459 F.2d 32 (5thCir. 1972); Struck v. Secretary of Defense, 460 F.2d 1372 (9th Cir. 1972).

3 Cohen v. Chesterfield County School Bd., 474 F.2d 395 (4th Cir. 1973); Schattmanv. Texas State Employment Comm'n, 459 F.2d 32 (5th Cit. 1972); Struck v. Secretary ofDefense, 460 F.2d 1372 (9th Cit. 1972).

4 Green v. Waterford Bd. of Educ., 673 F.2d 629 (2d Cit. 1973); La Fleur v. ClevelandBd. of Educ., 465 F.2d 1184 (6th Cit. 1972).

5 See Gunther, Forward: In Search of Evolving Doctrine on a Changing Court: A Modelfor a Newer Equal Protection, 86 HARV. L. REV. 1, 18-48. See also James v. Strange, 407U.S. 128 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); Weber v. Aetna Casualty &Surety Co., 406 U.S. 164 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Humphrey v.Cady, 405 U.S. 504 (1972); Eisenstadt v. Baird, 405 U.S. 438 (1972); Reed v. Reed, 404U.S. 71 (1971).

6Cohen v. Chesterfield County School Bd., 474 F.2d 395 (4th Cit. 1973), cert. granted,

41 U.S.L.W. 3565 (U.S. Apr. 23, 1973); La Fleur v. Cleveland Bd. of Educ., 465 F.2d 1184(6th Cit. 1972), cert. granted, 41 U.S.L.W. 3565 (U.S. Apr. 23, 1973).

628

1973] NOTES

interfere with two fundamental rights: the right to procreate and the rightto work. Alternatively they argue that sex classifications should be re-quired to meet a higher standard of rationality than that embodied in theminimal rational relation test applied to economic classifications. Thecourts, however, have given these arguments little analytical attention. Af-ter setting forth the factual background of a typical pregnancy leave case,this note will deal with the technical question of whether such rules doclassify by sex. It will then analyze the applicability of the various equalprotection standards to sex classifications. Finally, this note will suggestthat a pregnancy leave rule produces no equality injury and that the bur-dens imposed by such rules should be examined under due process stan-dards rather than through equal protection.

The recent Sixth Circuit case of La Fleur v. The Cleveland Board ofEducation7 provides a typical example of a pregnancy leave rule in opera-tion. The Cleveland Board of Education required all pregnant teachersto take an unpaid leave of absence, from five months prior to deliveryuntil at least three months after delivery. Once the teacher went on leave,she was replaced permanently by another. Upon return, she wasreassigned and had no right to regain her former teaching position. Hadpregnancy been treated like sick leave, pregnant teachers would have beenable to use accrued sick leave days during their absences and would havebeen able to return to their prior teaching assignments. Each teacherwould have been able to take leave as medical conditions and personalefficiency dictate; some would have been able to work right up until thetime of delivery. Thus, if pregnancy were treated like sick leave, the preg-nant teacher would be able to earn her usual salary for each workingmonth beyond the cut-off date, and the financial cost to the Board wouldnot change due to the necessity of hiring a replacement during the leaveperiod. Since the pregnant teacher did not lose seniority for promotionpurposes, other teachers received no competitive advantage from the preg-nancy leave rule.8

Evidentiary hearings at trial centered largely around proof that preg-nancy was a medical condition and ought to be treated as such. Theexpert witness for the Board conceded that he often advised his patientsto work straight through until two weeks before delivery and admittedthat each pregnancy should be treated, if possible, as an individual case.Evidence was adduced to the effect that efficiency and teaching ability di-minished slightly during pregnancy, but there was no evidence that themother's health or any other interest was in any way affected by, or relatedto, the three-month mandatory post natal leave. Although conceding thateach pregnancy was medically unique and some pregnant teachers could

7465 F.2d 1184 (6th Cir. 1972).81d. at 1186.

OHIO STATE LAW IOURNAL

work until delivery, the Board justified the regulation principally in terms

of administrative efficiency since the date for replacing the teacher was

readily ascertainable. The Board also argued that the danger of assaults

by students and the interruption of class by snide remarks justified the

regulation. Though the La Fleur Court agreed that administrative burdens

were lightened to a slight extent it insisted that the threat of assault and

the prevention of snide remarks were not sufficient to counter the interests

of the teacher in her employment. The court struck down the rule as

failing to satisfy an increased rationality requirement under the equal pro-

tection clause.

I. Do MANDATORY PREGNANCY LEAVE RULES

DISCRIMINATE ON THE BASIS OF SEX?

The first issue in the pregnancy leave case is whether these rules clas-

sify by sex. Alternative answers to the question exist. Since the rule

applies only to women it can be viewed as a discrimination based upon

sex. On the other hand, the rule can be viewed as dealing exclusively

with a condition, and the fact that the condition strikes one sex alone

can be considered fortuitous and irrelevant. Those circuits which view

these regulations primarily as impositions upon women tend to strike them

down on a substantial rationality requirement while those that consider

them neutral regulations of pregnancy uphold them under a minimal ra-

tionality standard.Quite obviously, the pregnancy leave rule applies to only one sex, but

the issue the circuits should confront is whether a classification which bur-

dens pregnancy burdens an entire sex. Typically the opinions state their

conclusions without setting forth any detailed reason for taking one view

as opposed to the other. For example, the Sixth Circuit, in La Fleur,

referred to the explicit sex classification in Reed v. Reed9 and reasoned

that, "Here too, we deal with a classification which is inherently based

on sex."' 0 Similarly the Second Circuit, in Green v. Waterford Board of

Education," agreed that a pregnancy leave rule applies only to women and

constitutes a discrimination based upon sex.On the other hand, the Fourth Circuit, in Cohen v. Chesterfield County

School Board,'2 held that there was no reason to view a pregnancy leave

rule as a sex classification since all of those similarly situated with respect

to pregnancy are treated equally irrespective of sex. The Fifth Circuit,

in Schattman v. Texas State Employment Commission,'3 rejected the notion

9404 U.S. 71 (1971).

10 465 F.2d at 1188.

11473 F.2d 629 (2d Cir. 1973).12 474 F.2d 395 (4th Cir. 1973).

13 459 F.2d 32 (5th Cir. 1972).

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NOTES

that regulations dealing with pregnancy are inherently or self-evidentlybased upon sex and agreed that "the fact that only a woman becomespregnant does not nullify the pregnancy in the ensuing physical condi-tions."' 4 The court refused to look beyond the face of the regulationand felt that it classified by pregnancy, rather than by sex.

Pregnancy leave rules establish two classes of persons: pregnant teach-ers and all other teachers. In order to find a sex classification one mustgo beyond the face of the regulation and somehow infer that a classifica-tion of pregnant teachers in fact applies to all women teachers, that is,that the regulation discriminated against the entire sex. This inferenceis, at best, metaphysical. Some female teachers choose not to have childrenwhile employed, others begin employment only after having had children,and still others are beyond child-bearing age and could not enter the regu-lated class even if they so wished. Thus substantial groups of femaleteachers are never affected by the rule.' 5 Cases which argue that preg-nancy leave rules are sex discriminations advance no reasons why "discrim-ination" only against female teachers of child-bearing age who have chil-dren or who might wish to have children while employed must be imputedto the larger class of all female teachers. One could argue that all femaleteachers ought to be free to have children while employed, but the dis-crimination still does not apply to all female teachers.

Pregnancy is not an inevitable incident of womanhood. Women canavoid pregnancy and thus can avoid falling within the regulated class.Not only, then, is the inference of sex classification unexplained, but itimputes discrimination against a smaller class, whose members entered vol-untarily, to a larger class of persons bearing fixed biological traits. Theobjection to viewing a pregnancy leave rule as a sex classification arisesprimarily from the lack of any guiding principle which can control theimpulse to view narrow classications as offending the interests of somelarger group. There are many statutes and regulations to prevent hemo-philiacs and colorblind persons from driving or holding certain jobs, andyet the judiciary does not customarily view such burdens as offending malesgenerally. The fact that these sex linked traits exhibit their symptomsexclusively in males would be viewed as fortuitous and incidental to regula-tions which speak narrowly to the underlying conditions. A similar cul-tural habit of mind tends to prevent judges from viewing criminal rapestatutes as offending males generally nor prosecutions of prostitution tofemales generally. If regulations dealing with pregnancy classify by sex,then an argument could be made that school boards offering pregnancy

14 Id. at 40.15 Statistics indicate that 22% of the female teachers in the Cleveland system are above

child bearing age. Exact percentages for other unaffected dassed cannot be determined fromthe statistics. Brief for Petitioners at 6, La Fleur v. Cleveland Bd. of Educ., 465 F.2d 1184 (6thCir. 1972).

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OHIO STATE LAW JOURNAL

leave with pay would discriminate against males, who could not possiblyqualify for the benefits.16 Moreover, cases finding a sex classification ina pregnancy leave rule do not provide any neutral principle or test whichwould avoid unnecessary disruption of state power to regulate conditionsthat may threaten state interests.

Those circuits which found such classifications have determined thatthe social and political importance of removing any obstacles which tendto impede the entry of women into the labor market overbalances thesignificance of administrative convenience and employee efficiency assertedby the employer. But the sex classification view leads to a misstatementof the issue. Actually the interests involved are much narrower. Theprecise question is whether females must be allowed to have babies upontheir own terms while employed. The larger interests of women in equaleconomic opportunity and in equal pay for equal work are not offendedby the pregnancy leave rule, and yet a finding of sex classification tendsto prejudice the balancing of interests actually involved in the pregnancyleave case.

On a more technical basis the state legislature or school board couldhave adopted either of two possible classifications both of which wouldserve their interests in efficient employees and continuity of instruction.It could refuse to hire any women, or it could take the narrower courseand adopt a pregnancy leave rule applicable to pregnant persons. Theapproach chosen implies a prior legislative rejection of the broader sexclassification which the courts have found in the narrower pregnancy leaverule. Apparently there is no way that the legislature may classify withrespect to pregnancy without running afoul of the sex discriminationcharge. The legitimacy of judicial intervention on behalf of women's em-ployment interests weakens when the classification used in the regulationindicates that the legislature has already balanced the interests of womenemployees against the efficiency and continuity interests threatened by preg-nancy. Judicial broadening of the classification beyond the terms of theregulation has the characteristics of a manipulative device used to readjusta prior legislative balancing of interests.

On a more intuitive level it might be tempting to view mandatoryleave policies as a product of a consistent pattern of sexual stereotypeswhich in the aggregate, tend to disadvantage all women. Perhaps theSixth and Second Circuits felt that mandatory pregnancy leave rules cannotbe approached as a discrete problem, but must be interpreted in a largercontext of what the courts believe to be prevailing social attitudes. How-ever, these courts should then have found as a fact that leave rules ariseout of sex role sterotypes, and they ought to have given precise indications

16 Cf. Burns v. Rohr Corp., 346 F. Supp. 994 (S.D. Cal. 1972), where ten minutes restbreaks for women in addition to those given men were held violative of Title VII of theCivil Rights Act of 1964.

[Vol. 34

NOTES

of the relationship between these suspicions and the finding of sex classi-fication in otherwise neutral regulations.

In fact, the sex classification issue has been employed to the exclusionof much more complex constitutional issues. The circuits tend to decidethese cases on the basis of whether such rules classify by sex, when the realissue involves the question of whether effects of pregnancy threaten interestsof the public employer to an extent which justifies the burdens imposedby the pregnancy leave rule. Resolution of the pregnancy leave case interms of sex classification raises more questions than it answers. The cir-cuits have not set forth any analysis of the various equal protection stan-dards of review which may be applied to pregnancy, nor have they care-fully considered the competing interests to be balanced in the pregnancyleave situations.

Furthermore, the finding of a sex classification in no way disposes ofequality claims of pregnant persons. Under the evolving "newer equalprotection ' 17 the old rational basis test has been strengthened to requirea higher degree of rationality between classification and purpose served.The emphasis given to the sex classification issue by the two circuits whichstruck down pregnancy leave rules indicates a misapprehension that anapplication of the "newer equal protection" depends upon the nature ofthe classification rather than any specific quantum of "rationality," andthat some intuitive suspicion of unfairness is necessary to trigger the newstandard. On the other hand, those circuits which have upheld these preg-nancy leave rules deal with an entirely different issue when they emphasizethe lack of a sex classification. If these latter circuits were merely pre-occupied with the sex classification, they would still have to face the moreprecise question of whether these rules deprive pregnant persons of the "new-er equal protection." By foreclosing the equal protection claim of preg-nant persons through a finding that no sex classification exists, they mustbe holding that pregnant persons have no equality injury, or no equalityinterest to assert that will sustain an equal protection claim.

A finding of sex classification does, however, constitute a prerequisiteto successful attack under the suspect classifications doctrine. Plaintiffsargue that sex classifications are suspect, and thus the sex classificationissue does have direct relevance to the first argument raised in the preg-nancy leave case.

II. THE SUSPECT CLASSIFICTIONS ARGUMENT

Once a court determines that a pregnancy leave rule classifies by sex,it must decide whether sex classifications ought to be treated as suspectunder the equal protection clause. If all sex classifications are suspect,the pregnancy leave rule would have to be justified by a compelling state

17 See Gunther, supra note 5.

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interest. Although this argument has been met by silence in all of thepregnancy leave cases, the literature abounds with arguments in favor ofextending "suspect classification" treatment to women, 8 and at least onefederal district court' 9 as well as a state supreme court20 have applied thedoctrine to women outside the pregnancy leave context.

For purposes of review under the equal protection clause, the SupremeCourt has developed the doctrine of suspect classifications applicable torace,2' alienage,22 and national origin.23 When the Court applies this stan-dard, the burden of proof shifts to the state to show not only that theregulation in question serves a compelling state interest but ktlso that theregulation imposes the slightest burden possible consistent with achievingthe statutory purpose on the class created. As a first step in the analysis,suspect classifications are presumed to lack rational relation to any per-missible state purpose. Hence, classifications by certain external or con-genital physical traits which are seldom relevant to the state interests ofhealth, safety, and welfare may often be suspect.24 If, as a hitorical mat-ter, the community associates certain individual characteristics with thephysical traits common to the group, the Court suspects that a classificationis based only upon group identity and is not rationally related to the ef-fectuation of a legitimate state purpose, which generally requires catego-rization by individual qualities.25 Since classification by sex involves ex-ternal physical traits from which the community infers certain ndividualqualities in members of the group, it follows that such classifications willproduce suspicion of irrationality. However, suspicions of irrationalitycan be handled by means of the rational relation test, and as a generalrule something more than cultural propensity to stereotype members of agroup must be established before the group may qualify as a suspect class.Were it otherwise, practically every conceivable grouping based upon ex-ternal physical traits would be suspect, including the mentally and phy-sically handicapped and deprived.26

18 For a general overview of the literature containing such arguments see, Comment, Are

Sex Based Classifications Constitutionally Suspect, 66 Nw. L REV., 481 (1971); 52 B.U.L. REv. 196 (1972); 40 U. CIN. L. REV. 857 (1971); 72 Wisc. L. REV. 629 (1972); 25VAND. L. REV. 412 (1972); Comment, Loves Labors Lost: New Conceptions of MaternityLeaves, 7 HARv. CIv. RIGHTS-CIv. LIB. L. REV. 260 (1972); Note, Developments in the Law,Equal Protection, 82 HARv. L. REv. 1065 (1969); Karst, Invidious Discriminations, 16 U.C.L.A.L. REV. 716 (1969); Brown et al., The Equal Rights Amendment, 80 YALE L.J. 871 (1971).

1 United States ex rel. Robinson v. York, 281 F. Supp. 8 (D. Conn. 1968).20 Sail'er Inn v. Kirby, 5 Cal. 3d 1, 485 P.2d 529, 95 Cal. Rptr. 329 (1971).

21 Strauder v. West Virginia, 100 U.S. 303 (1880).2 2 Takahashi v. Fish & Game Comm'n., 334 U.S. 410 (1948).

23 Oyama v. California, 332 U.S. 633, 644-46 (1948).

24 Frontiero v. Richardson, 93 S.Ct. 1764, 1770 (1973).2 5 This conclusion would follow from the assertions in the Frontiero plurality that external

characteristics are irrelevant to underlying individual qualities.2 6 Frontiero v. Richardson, supra note 24.

[Vol. 34

NOTES

The second step of analysis requires historical or empirical evidencedemonstrating the tendency of legislatures to (1) stereotype the particulargroup in the legislative process, and (2) malevolently impose unequal bur-dens.27 Absent evidence of legislative stereotyping and malevolence, thejudiciary would be intervening on behalf of a class which is stereotypedthrough the random cultural choices of a free people rather than on behalfof one which is invidiously discounted through state action. The equalprotection clause may legitimately be interpreted to restrict the freedomof legislature to reflect the discriminatory cultural choices of the peoplewhile distributing society's burdens, but there is no textual warrant forestablishing strict standards of review until popular discriminatory attitudesclearly appear in the terms of statutes which allocate these burdens. Anaccidental or irrational burdening alone will not suffice, since the primaryobjective of the suspect classification doctrine is the defeat of state regula-tions which have the dominant purpose and effect of suppressing minori-ties, but which, at the same time, can be justified as being rationally relatedto some other subsidiary state interest. In this situation the judiciary hasreason to suspect that legislators enacted burdensome laws with malevolentintent to suppress minorities and then justified such laws in terms of somemarginal benefit to the state. The utility of the doctrine lies in its abilityto overcome merely colorable justifications and thus invalidate a burden-some law while avoiding the difficult task of proving malevolent intent.

The question, therefore, immediately arises whether the alleged bur-dens imposed by sex classifications were the product of malevolent intent.Within the context of history, it becomes necessary to decide whether sexclassifications have placed burdens upon women, and if so, whether ma-levolent intent was a significant factor. A brief analysis of race classifica-tions will serve as a starting point. The legislative history of the Four-teenth Amendment bolsters the notion that the equal protection clausewas intended to have particular protective effect upon ex-slaves. 8 In thiscontext, there was ample evidence that slaves would be deprived of. legalrights by legislatures. Specific statutes which created such classificationsand imposed burdens upon ex-slaves reinforced the notion that legislativebodies were prone to enact laws with an overt or covert purpose of de-priving that particular class of its rights.2"

27 San Antonio Independent School Dist. v. Rodriguez, 93 S.Ct. 1287, 1311 (1973), statesthat the traditional indicia of suspectness are: a class saddled with disabilities or subjected tosuch a history of unequal treatment, or relegated to such a position of political powerlessness"as to command extraordinary protection from the majoritarian political process." The plural-ity opinion in Frontiero also implies a requirement that unequal burdens be reflected in thestatutes before a suspect classification may be established. 93 S.Ct. 1764, 1769.

28 Strauder v. West Virginia, 100 U.S. 303 (1880); Slaughter House Cases, 83 U.S. (16Wall.) 36, 71-72 (1873).

29 Plessey v. Furguson, 163 U.S. 537 (1896) provides the classic example of such a statute.Gomillion v. Lightfoot, 346 U.S. 339 (1960) provides a more subtle example.

1973]


In the context of sex classifications, however, there is no reliable his-

torical evidence that legislatures deal with women in malevolent and in-

sidious ways. Dower statutes, election statutes (taking against the will),

the marital deduction, community property, alimony, maternal preference

in custody contests, child support, and marital rights and duties are all

aimed at easing burdens for the majority of women. It is difficult to

argue that such statutes burden women or that they are the product of

exploitative intent. The argument that these seemingly beneficent laws

were part of a grand scheme to confine women to traditional roles has

little basis in fact.30 Even today women disagree as to their proper role,

and notions of malevolence are hard to justify even on intuitive bases.

On the other hand, women's protective legislation, such as maximum

work hour laws, exemption from jury service, maximum weight lifting

laws, and exemption from military conscription, fall into a slightly differ-

ent category since they arguably could have the effect of restricting the

economic opportunity of women. The appropriate question is whether

they were so designed. In the last century, many embryonic reform move-

ments arose in response to conditions produced by the industrial revolu-

tion.31 Women made very significant contributions to the reforms of that

period,3 2 and could chronicle with pride the passage of women's protective

legislation.3 The modern feeling, however, seems to be that the wom-

en's protective legislation growing out of this reform movement was tai-

lored to exact a quid pro quo from women in terms of reduced economic

opportunity. Irrespective of present day effects of these statutes,3 4 the mo-

30 See note 18 supra. See also Frontiero v. Richardson, 93 S.Ct. 1764 (1973). None of

these authorities confront the array of judicial authority for the proposition that female protective

legislation was designed to help women. On the bona fides of limiting contractual capacity of

married women see Milliken v. Pratt, 125 Mass. 374, 382 (1878). On the bona fides of female

protective legislation see Muller v. Oregon, 208 U.S. 412, 422 (1907); and West Coast Hotel

Co. v. Parrish, 300 U.S. 397 (1937):What could be closer to the public interest than the health of women and their protec-

tion from unscrupulous and overreaching employers. . . .The legislature of the state

was dearly entitled to consider .. . the fact that [women] are in a class receiving

the least pay, that their bargaining power is relatively weak and that they are the ready

victims of those who would take advantage of their necessitous circumstances.

300 U.S. at 398.3 1

See 2 S. MORISON, H. COMMANGER & T. LEUCHTENBERG, THE GROWTH OF THE

AMERICAN REPUBLIC, 81-103, 266-295 (6th ed. 1969).a2 See S. BRECKENRIDGE, WOMEN IN THE TWENTIETH CENTURY (1933); and V. SAPIEPKA,

EMINENT WOMEN (1948). See generalty NOTABLE AMERICAN WOMEN, 1607-1950; A BIO-

GRAPHICAL DICTIONARY (E. T. James ed. 1971).3 3

See CLARA BEVER, HISTORY OF LABOR LEGISLATION FOR WOMEN IN THREE STATES;

and FLORENCE SMITH, CHRONOLOGICAL DEVELOPMENT OF LABOR LEGISLATION FOR WOMEN

IN THE UNITED STATES. (Women's Bureau, U.S. Dept. of Labor, Bulletin No. 66, 1929).

34 One may fairly doubt that these statutes hinder the economic freedom of the average

woman as the modern literature alleges. Rather, they offend the identity of the middle class

woman who was never intended as the beneficiary. Instructive for purposes of highlighting

the class differences involved is INT. REV. CODE OF 1954, § 214, providing a deduction

for housekeeping and child care expenses and necessarily presupposing a ready supply of

cheap female labor to clean up after their more afluent "sisters."

[Vol. 34

NOTES

tives for their passage must be ascertained in a manner consistent withthe motives behind passage of similar types of reform legislation arisingout of the same period in response to the same conditions.8 5 These stat-utes were part of a consistent reform movement, and to assume some sortof conspiracy on the part of late nineteenth century reformers to suppresswomen in the latter half of the twentieth requires the further assumptionof superhuman prescience.

In the absence of better evidence, no reason exists to suppose thatnineteenth century sex classifications were anything but a sensible adjust-ment to nineteenth century conditions and needs. Indeed, it is hard toimagine that women textile workers at the turn of the century would havecomplained that maximum work hour laws for women interfered withtheir right to work sixteen hours a day, as opposed to ten. In the past,factory work demanded physical exertion to the point of debilitating thehealth of workers. Presses and cutters lacked safety equipment, lightingwas poor, noise levels were high, and industrial accidents exacted extremecosts in life and limb.36 Legislation protecting women from these hazardsis not the traditional stuff of a suspect class. Such legislation hardly pro-vides the sort of well-stocked environs in which one hunts for invidiousdiscriminations.

The opinions which held that sex constitutes a suspect classificationfor purposes of review under the equal protection clause did so on thegrounds that women have been treated with malevolence by society atlarge and legislatures in particular. Sail'er Inn v. Kirby37 found explicitlythat categorizing sex classifications as suspect is necessary to protect womenfrom opportunity-restrictive laws, and United States ex rel. Robinson v.York"' argued that a statute assigning women to a minimum security farmfor indeterminate periods with release conditioned upon rehabilitation evi-denced the need to treat sex as a suspect classification. The York courtreasoned that the statute permitted detention of females for longer periodsthan males for the same offenses and that this aspect demonstrated legisla-tive malevolence. In actuality, the statute was premised upon the notionthat women are more amenable to rehabilitation than men and allowedearly release predicated upon evidence of rehabilitation. The opinion didnot deal with the legislative history of the statute but argued, nevertheless,that its obvious purpose was to mete out longer prison terms to women.Again, there was no statistical analysis of whether women did in fact servelonger average terms than men under the statute, nor had the particular

35 See J. LEsCOHIER, HISTORY OF LABOR IN THE UNITED STATES 1896-1932; WORKINGCONDITIONS, (1935); and E. BRANDEIS, HISTORY OF LABOR IN THE UNITED STATES 1896-1932; LABOR LEGISLATION, (1935).

S6 See material cited at note 35 supra.

3 5 Cal. 3d 1, 485 P.2d 529, 95 Cal. Rptr. 329 (1971).8 281 F. Supp. 8 (D. Conn. 1968).

1973]


plaintiff in the case served anywhere near the total maximum sentenceapplicable to males.

Neither of these opinions mentioned the possible argument that inclu-sion of sex discrimination within the Civil Rights Act of 1964 and thesubsequent ratification of the Equal Rights Amendment provide evidencethat Congress presently feels that women deserve suspect classificationstreatment under the equal protection clause of the Fourteenth Amendment.Although this position arguably has appeal, it fails to justify judicial inter-vention in the area of women's rights. Modern equal rights legislationconclusively demonstrates that the Congress and the states have the abilityand the will to deal equitably with women. Just as legislatures in thepast were solicitous of feminine welfare when they enacted women's pro-tective legislation so modern legislatures demonstrate the same tendencywhen they approve remedial legislation providing women with equal eco-nomic opportunity. If the courts were to extend suspect classification treat-ment to women, they would be competing with the legislative branch,which has already demonstrated willingness to remedy inequality. Ratherthan nullifying legislative acts which burden the female sex, the courtswould be establishing standards of solicitude in competition with thoseestablished by the legislative branch. They would review legislation onthe basis of whether it was sufficiently solicitous of feminine welfare, ratherthan on the basis of legislative oppression. The extension of judicial pro-tection to a class comprising 51o of the population presents further dif-ficulties. If an absolute majority of the population feels oppressed, thenit can protect itself through the electoral process. The fact that womenhave not united to exert power at the ballot box would seem to indicatesubstantial disagreement within the class, and would also indicate conflict-ing demands upon the legislative process from within that class. Perhapsthe curious mix of domestic relations law, protective legislation, and equalrights legislation accurately reflects the inconsistent demands of women.Any judicial attempt to rationalize the conflicts might interfere with theproper legislative adjustment of competing interests.

At this juncture, it is important to note that in the application ofthe suspect classification doctrine to race, the requirement of malevolentintent has become progressively less significant. A line of lower courtauthority has misapplied Swann v. Charlotte-Mecklenburg Board of Educa-tion3

' by finding violations of equal protection in de facto situations whichessentially lack malevolence or suspect purpose.40 These lower court

291402 U.S. 1 (1971).40 See Cisneros v. Corpus Christi Independent School Dist., 459 F.2d 13 (5th Cir. 1972),

total abandonment of the de jure - de facto distinction where Mexican Americans attendedpredominantly Mexican American schools as a matter or cultural choice rather than stateaction; Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972), preferential hiring of minoritieswith lesser qualifications than whites ordered by the court on the basis of statistical imbalancealone; Larry P. v. Riels, 343 F. Supp. 1306 (N.D_ Cal. 1972), unconstitutionality of IQ

[Vol. 34

NOTES

"quota cases" focus on racial imbalance alone and abandon altogether therequirement of malevolent intent, thus the original libertarian premise un-derlying the doctrine has been replaced by a national interest in the organicunity of the population.4' Quite unabashedly, the lower courts have ar-rived at the legislative judgment that all races will be equal, and thatany demonstrable racial imbalance will be rectified without respect towhether it arose as a result of impermissible legislative acts or as a by-product of cultural choices uncontrolled by the state.42 Some lower courtswill presume that all racial imbalance is legislatively malevolent since thestate has power to rectify that imbalance.43 In a sense, the lower courtshave injected the theories of Rousseau 44 and Hegel45 into the equal protec-tion clause in much the same manner as the Court in Lochner v. NewYork46 identified substantive due process with the theories of AdamSmith.47 But even if suspect classifications now reflect a national interestin organic unity of the population, the demand for a raceless and classlesssociety rests upon entirely different legislative interests than the demandfor a sexless society. To this extent, any case which would extend suspectclassification treatment to women on the basis of statistical imbalancewould fail to take account of the substantial difference between the legis-lative interests involved. Culturally determined sex roles do not presentthe same threat of civil discord as do imposed race and class roles. Thuswe must infer that women do not merit suspect classification treatment

tests where they lead to racial imbalance; Banks v. Perk, 341 F. Supp. 1175 (N.D. Ohio1972), expenditure of HUD funds on low income housing in black neighborhoods held unconsti-tutional; Bradley v. Milliken, 345 F. Supp. 914 (E.D. Mich. 1972), busing between Detroitand the surrounding county schools.

41 Originally, the doctrine assumed that racial classifications had nothing to do with theunderlying qualities of the individual. The plurality opinion in Frontiero, supra note 24adheres to this view. The "state action" concept further demanded that the courts leaveindividuals alone to associate and discriminate as they please. Hence, individual liberty wasa predominant theme of the fourteenth amendment.

42 The end result of the demise of "state action" allows courts to force individuals intoassociations they would rather avoid. The sacrifice of individual liberty, speech, assembly,and association can be justified by the national interest in homogeniety. See Wechsler, TowardNeutral Principles of Constitutional Law, 73 HARv. L. REV. 1, 15, 34 (1959). But seeBlack, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 429 (1960).

43The failure to perform "affirmative obligations" provides all the suspectness that isnecessary.

4 4 JEAN JAQUES ROUSSEAU, THE SOCIAL CONTRACT (W. Ebenstein ed., Great Political

Thinkers, 3d ed. 1960), provides the cornerstone for all modern egalitarian statist concepts.Within Rousseau's framework, the courts now constitute themselves the interpreters of thegeneral will and echo the ideal: "Each of us puts his person and all his power in commonunder the supreme direction of the general will, and, in our corporate capacity, we receiveeach member as an indivisible part of the whole." Id. at 445.

45 Hegel espoused the notion that an individual can have no true identity apart fromthat derived from the collective achievements in support of the state. Id. at 600.

46 198 U.S. 45 (1905).4 7 ADAM SMITH, THE WEALTH OF NATIONS, advanced the theory of laissez faire economics.

As the title suggests, Smith was mainly concerned with maximizing national power and wasnot overly impressed with the value of individual liberty for its own sake.

1973]


even within the latest line of cases interpreting the equal protection clauseas a constitutional mandate for societal gemeinschaft.48

III. THE FUNDAMENTAL RIGHTS ARGUMENT

A second argument for a strict standard of review arises within thecontext of mandatory pregnancy leave. Every citizen has fundamentalrights that, as a matter of equal protection, may be interfered with onlyto serve a compelling state interest. Such rights include, in addition tospecific enumerations in the Bill of Rights and penumbral rights thereto:voting,49 procreation, 50 marriage, 51 interstate travel,52 and marital privacy.r

Note that in La Fleur the appellant argued that the regulation subjectedher to unequal treatment by making continued employment contingentupon the non-exercise of her constitutional right to procreate. She alsoasked the court to establish a new fundamental right to work,54 and arguedthat no regulation may unequally burden this requested right in the ab-sence of a compelling state interest. The La Fleur court felt that the plain-tiff's interest in the employment relation was of sufficient importance that aregulation may not interfere in an arbitrary and capricious way, but thecourt did not apply an "interference with a fundamental right" analysis.Also, in Struck v. Secretary of the Defense,5 the Ninth Circuit rejectedthe argument that dismissal of a pregnant Air Force officer infringed uponher marital privacy, but no reasons for the rejection were given.56

The reluctance of the circuits to seize upon these doctrines in the preg-nancy leave cases seems to cast doubt upon their ultimate reach, but thesedoctrines do apply with singular theoretical consistency. If the right toenjoy marital privacy and the right to procreate are in fact fundamentalrights, school boards and other public employers would have a heavy bur-den in justifying a leave policy which burdens them. However, the lowercourts' reluctance to discuss this theory may be due to the Supreme Court'sopinion in Dandridge v. Williams,57 which upheld a Maryland welfarescheme although it burdened the exercise of the right to procreate. InDandridge the Court upheld an admitted state interest in encouraging fain-

48 This German word for "community" has strong Hegelian overtones. Apprehensionthat the judiciary might grant suspect classification status on this ground is not entirely unfounded.The plurality opinion in Frontiero v. Richardson, 93 S.Ct. 1764, 1770 and n.17 (1973), placesgreat emphasis upon statistical imbalance.

49 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).50 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).51 Loving v. Virginia, 388 U.S. 1 (1967).

52 Shapiro v. Thompson, 394 U.S. 618 (1969).

53 Griswold v. Connecticut, 381 U.S. 479 (1965).54 La Fleur v. Cleveland Bd. of Educ., 326 F. Supp. 1208, 1213 (N.D. Ohio 1971).

55460 F.2d 1372 (9th Cir. 1972).

561d. at 1376.57 397 U.S. 471 (1970).

[Vol. 34

NOTES

ily planning s and noted that the state could allocate its limited resourcesin any rational manner and that no one had a fundamental right to publicfunds. At bottom, then, the pregnancy leave contest is over the publicemployee's "right" to work and a thousand dollars or so of compensation,as against the right of the governmental unit to promote the efficiencyof its employees and the continuity of its functions. One has difficultyseeing why a public employee's interest in an extra thousand is more funda-mental than the interest of the Dandridge welfare recipient in his thous-and, or for that matter, more fundamental than the financial interests ofthe employer in Lochner. 9 Failure of the courts to grapple with theseissues testifies to the limited reach of the "interference with a fundamentalright" argument.

Moreover, recent developments since the pregnancy leave decisionshave considerably weakened the fundamental right argument. In San An-tonio Independent School District v. Rodriguez,0 the Court held that edu-cation is not a constitutional right and that an unequal burdening of thisright does not give rise to a compelling state interest standard of review.6

This decision casts considerable doubt upon the fundamental rights methodof attack in future cases. Recent decisions tend to apply the substantialrationality test to those instances which involve fundamental interests un-der the old "two-tiered model" of equal protection.62

IV. THE SUBSTANTIAL RATIONALITY REQUIREMENT

The Supreme Court had consistently dealt with sex classifications onthe basis of a rational relation test;63 however, Frontiero v. Richardson,indicates that this test may soon be abandoned. 4 The traditional rationalrelation test has undergone dramatic changes within the last few yearsand has been replaced with respect to certain equality interests by a sub-stantial rationality requirement, sometimes referred to as the "newer equalprotection" or the "Burger Court equal protection. ' 65

Under the traditional formulation of the rational relation test, the Su-preme Court has upheld female protective legislation, including exclusionsfrom certain occupations.66 The classic decision in Goesaert v. Cleary"

58d. at 473.50 The employer disliked the idea of paying higher wages. In the pregnancy leave case,

the public employee misses her normal income. The former fell under the rubric of dueprocess, while the latter falls under equal protection.

6093 S.Ct. 1287 (1973).61 The right to education was established by Brown v. Board of Educ., 347 U.S. 483 (1954).6 2 See Gunther, supra note 5, at 12-15, 17-18.63 Reed v. Reed, 404 U.S. 71 (1971); Hoyt v. Florida, 368 U.S. 57 (1961); Goesaert

v. Cleary, 335 U.S. 462 (1948); and Muller v. Oregon, 208 U.S. 412 (1908).6493 S. Ct. 1764 (1973).6 5 See Gunther, supra note 5, at 1.6 6 Hoyt v. Florida, 368 U.S. 57 (1961); Goesaert v. Cleary, 335 U.S. 462 (1948); and

Muller v. Oregon, 208 U.S. 412 (1908).

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upheld a statute which generally excluded women from jobs as bartenders,although it allowed them to be waitresses and bar maids and allowed wivesand daughters of male tavern owners to tend bar. The statute was al-legedly designed to protect female morality but the more likely purposewas protection of the male bartender's union from more comely competi-tion, a clearly impermissible purpose from an equal protection standpoint.The Court declined to recognize this invidious motive and assessed therationality of the statute only in terms of the alleged purpose. The Courtrefused to assess the limited effects such a law would have upon femalemorality, and in addition, reasoned that it could pass muster'irrespectiveof its underinclusive nature. Apparently, it was sufficient that the lawprotects the morals of only a few women while leaving the morals ofothers similarly situated to the depredations of the bar room.

This pattern of deference to legislative sex classifications no longerapplies. In Reed v. Reed,68 an Idaho probate code provision preferringmales to females among applicants for letters of administration in the sameentitlement class was found unconstitutional for failure of the preferenceto relate in a rational manner to any state interest. The Idaho supremecourt had previously upheld the statute, finding it rationally related tothe state interest in avoiding hearings on the merits to determine whichapplicant was more qualified. The Supreme Court held that the state in-terest was insufficient to justify the legislative grant of preference to themale sex. The Court further held that the objective of reducing the pro-bate caseload must be advanced in a manner consistent with the commandof the equal protection clause. "To give mandatory preference to membersof either sex over members of the other, merely to accomplish the elimina-tion of hearings on the merits, is to make the very kind of arbitrary legisla-tive choice forbidden by the Equal Protection Clause of the FourteenthAmendment."

69

Despite the fact that Reed is couched in the phraseology of minimalrationality, a different analytical standard was used there. The statute readas follows: "Of several persons claiming and equally entitled [under §15-3123 to administer, males must be preferred to females, and relativesof the whole to those of the half blood. ' 70 In holding this stated prefer-ence irrational, the Reed Court reasoned that the preference did not relateto the purpose of assuring that administrators were as closely related tothe decedent as possible. The terms of the preference itself suggest thatits purpose might be to provide the most competent administrator, assum-ing that men, on the average, have more business experience than women,

67 335 U.S. 462 (1948).68404 U.S. 71 (1972).69 Id. at 76.701d. at 73. IOWA CODE § 15-314 (1947).

[Vol. 34

NOTES

but the Court refused to analyze its rationality as a means of attainingthis objective. Actually, the Idaho scheme served a mix of several pur-poses. The primary purpose was to select administrators of the closestdegree of kinship to the decedent as possible. When this primary purposeof kinship was satisfied by the presence of two equally related contestants,the terms of the sex preference served the purpose of selecting the morequalified administrator. The mandatory nature of the preference suggestsa third purpose, that of reducing costs. The complete statement of thestatutory purpose would be: To select administrators from the closest de-gree of kinship, but among competitors of equal kinship, to select themost qualified while incurring the least cost to the state in the selectionprocess.

71

The statute attacked in Reed was rather obviously rational in relationto this comprehensive mix of purposes. It is hard to conceive of a statutewhich would serve this mix with greater rationality and indeed it seemsthat the Reed holding can be attributed only to a balancing of the interestin female opportunity against the cost of providing such opportunity.Within the limited context of Reed, this opportunity cost is probably mini-mal because only the divorced parents of a deceased child would be com-peting for letters of administration.

The rationality standard applied in Reed has the disadvantage of cloud-ing any helpful analysis of the values to be balanced. First, the stateinterest in saving money should not be branded as "mere avoidance ofhearings" or "mere administrative convenience" and then dismissed as in-consequential. The legislative branch has the task of raising revenue andallocating funds to achieve state purposes. If the judiciary is going tointervene in this process, it ought to estimate the exact dollar costs tobe assessed on behalf of the particular interests of the class it seeks toprotect. Second, it is unclear from a rationality analysis whether the judi-cially protected interest of female opportunity must be achieved at all costsor whether this interest will only be protected at a reasonable cost whena reasonable percentage of females will accrue practical benefits. It wouldbe interesting to find out how many women could win on the merits inthe Idaho contests for letters of administration, and whether this percentagecould reasonably justify the costs.

The latest Supreme Court case on sex classifications seems to abandonrationality as a test for judicial intervention, but establishes no standardof review to take its place. In Frontiero v. Richardson72 eight justicesstruck down a provision under a federal statute disallowing dependents'allowances to women members of the armed forces who could not provethe economic dependence of the male spouse. Male members of the armed

71 This method of analysis has been borrowed from Note, Legislative Purpose, Rationality,and Equal Protection, 82 YALE L.J. 123 (1972).

7293 S.Ct. 1764 (1973).

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forces were given such allowances without regard to the actual economicdependence of the female spouse. Four of the justices felt that sex shouldbe treated as a suspect classification under the Fifth Amendment's dueprocess clause. One justice concurred because the statute constituted "an

invidious discrimination in violation of the Constitution. ' 73 Three justicesconcurred in the judgment on the authority of Reed, and one justice dis-sented.

The plurality opinion extended suspect classification treatment to wom-en on the grounds that they had been stereotyped in past laws and becauseCongress and a majority of the state legislatures have indicated that wom-en's equality interests deserve a strict standard of judicial protection. De-spite the rather obvious fact that women have been stereotyped in pastlaws, the historical evidence indicates that laws which embody the femalestereotype have been designed, in the majority of cases, to protect womenand ease their burdens. Furthermore, there is no evidence that a majorityof women have disapproved of legislative sex classifications. Thus thereshould be no judicial suspicion of unfair or unjust legislative balancingwhere such classifications are used. Due to the apparent majoritarian ap-proval by the class allegedly discriminated against, an analogy of sex classi-fications to race classifications is completely inapposite. Finally, the refer-ence to Congress and the state legislatures is ludicrous; if these legislativebodies seek to protect the interests of women, they can do it themselvesrather than passing off responsibility to an appointed judiciary. The notionthat judges should establish competing standards of solicitude for a classwhich the legislature already seeks to protect is indeed a novel interpreta-tion of judicial review.74

The inability of a majority of the justices to agree on any single equalprotection standard demonstrates dissatisfaction with the "two tiered" sys-tem established by the Warren Court.75 The lack of agreement also indi-cates dissatisfaction with suspect classifications and rationality as the toolsof equal protection analysis. The Court might possibly be heading towarda single standard of invidiousness which will trigger equal protection scru-tiny along a sliding scale of values depending upon the relative need forprotection of the classification which is injured.76

73M. at 1773.74 The initial purpose of judicial review was to refuse enforcement to legislative acts which

were inconsistent or repugnant to the Constitution. This power was never intended to conferupon the judiciary the legislative and executive power to replace legislatively chosen means ofachieving a constitutional end with more effective judicial remedies for achieving the sameend.

75The Warren Court established strict scrutiny under "suspect classifications" and "funda-mental interests" while it reviewed most legislative acts under the minimal scrutiny standardof the rational basis test. See Gunther, supra note 5, at 8-12.

76 Support for the notion may be gathered from the concurrence of Justices Stewart and

Powell in Frontiero. Also, Weber v. Aetna Casualty & Surety Co., 406 U.S. 715 (1972) struckdown a statute which discriminates against illegitimates without mentioning the suspect classi-

[Vol. 34

NOTES

The result in Frontiero cannot readily be explained through any ofthe analytical devices used in the "newer equal protection" cases such asReed. A preliminary statement of the legislative purposes served by thechallenged statute would be to make the armed forces more attractive tomarried individuals with dependents but at the least cost to government.The Frontiero Court focused upon the relevance of the sex classificationto the governmental interest in cost savings and found that forcing womento prove actual dependence of the male spouse is underinclusive with re-spect to the cost saving interest. Obviously, the way to cure this under-inclusiveness and to eliminate the sex classification would be to requirethat all married members of the armed forces prove actual dependence.However, the underinclusiveness of the sex classification suggests a congres-sional conclusion that attracting married males into the armed forces re-quires greater inducements than attracting married females. Dependencyallowances without regard to actual dependence may have been necessaryto attract married males into the combat arms, while such allowances werenot necessary to attract married females into clerical and medical posi-tions.77 The sex classification thus suggests a fuller statement of the gov-ernmental purposes underlying the statute, those of attracting personnelinto the armed forces, but only to the extent that extra inducements arenecessary and at the least cost to the government.

The result in Frontiero cannot rest upon the lack of a rational relationbetween the statutory classifications and the purposes served. It has beensuggested, however, that the newer equal protection demands that the stat-utory classification serve a rational state purpose. Roe v. Wade 7 and Ei-senstadt v. Baird7 9 may be read as imposing an equal protection restraintupon governmental and state objectives.8 0 At the very least, these casessuggest that state interests in the preservation of morality are insufficientto overcome the societal interest in the welfare of the individuals affectedby the laws attacked. But providing inducements to enter the militaryis an eminently rational goal, and the provision of additional incentivesto that class which risks combat duty also seems to be a thoroughly rationalpurpose. The governmental interest in providing these benefits at leastcost is always rational. Although governments at various levels may have

fications doctrine. See James v. Strange, 407 U.S. 128 (1972); and Dunn v. Blumstein,405 U.S. 330, 342-43 (1972).

77 All males risk direct combat duty irrespective of primary miltiary occupational skill.78410 U.S. 113 (1973).

79 405 U.S. 438 (1972).8 oWhenever statutes attempt to impose "traditional" moral notions, the classifications used

are likely to be found irrational. Roe v. Wade, supra note 72; Eisenstadt v. Baird, supra note79; and Weber v. Aetna Casualty & Surety Co., supra note 76, are consistent with this view.These cases are more concerned with proscribing the substance of the laws attacked thanwith supervising the constitutionality of the means used.

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abundant resources, these resources are limited, and thus many sociallydesirable equality interests must be sacrificed to fiscal necessity.

Frontiero indicates that the nature of the classification will determinethe extent of judicial scrutiny. This analysis derives force from Dandridge

v. Williams8' and San Antonio Consolidated School District v. Rodriguez82

which present conflicts between the equality interests of the poor and the

state's fiscal resources. The only difference between these latter cases andFrontiero was the undefined and indiscrete nature of the classification de-nominated within the label "poor." In the abstract, the discreteness ofthe classification should not make any difference, for from the standpointof social justice, one may reasonably doubt that discrete classes merit judi-cial intervention more than the economically disadvantaged. Futhermore,persons falling within an economic classification are as precisely ascertain-able at any given point in time as are women.

Frontiero, however, presents larger problems than either Dandridge

or Rodriguez since other equality interests which Congress may seek toprotect conflict with the equality interest asserted by women with non-dependent husbands. Fundamental fairness requires, for example, thatpeople receive equal pay for equal work. Since women members of thearmed forces do not incur the same risks as men, one might cogentlyargue that women should not be given financial benefits of the same mag-nitude. But equally as important as a sex classification, single personshave a demonstrable equality interest in being paid as much as marriedpersons for the same work. Arguably, the irrelevant fact of marital status

should not entitle married persons to additional allowances for the samework. From the single person's standpoint, it is bad enough that depen-dency allowances are granted at all, let alone to males with non-dependentspouses, and the court further injures this equality interest when it extendsavailability of such allowances to married women. No rule can be discov-ered from the reasoning of the case to determine how the Court selectsfrom this spectrum of competing equality interests the one which mustprevail, nor is there any hint as to the relative weight such an interestmust bear in the legislative balancing process.

The pregnancy leave case presents the question whether any reasonexists for treating pregnancy differently from physical illness. While prob-ing for evidence which would justify different treatment the courts tendto emphasize statements by physicians to the effect that each pregnancyis sui generis and that many pregnant women can work until deliverywithout experiencing medical difficulties or decreased efficiency. But thefact that many, or some, pregnant women would not have a detrimentaleffect upon the interests of the state or school board 'has little direct rele-

81 397 U.S. 471 (1970).8293 S.Ct. 1278 (1973).

[Vol. 34

NOTES

vance to the issue of whether many other pregnancies would injure thoseinterests. Furthermore, the inquiries into the ability of "many" pregnantteachers to work up until delivery has no relevance to the issue of whethermedical differences exist between pregnancy and illness justifying a differ-ence in treatment. The appropriate inquiry would be whether pregnancywould in "many" cases result in inefficiency or suddenly occurring disrup-tive medical complications if pregnant persons were allowed to work aslong as they wished. From the evidence, it appears that many pregnanciesresult in decreased efficiency and sudden medical complications, and itwould seem that the state has power to prevent and eliminate these illswithin the ranks of its employees. Thus the precise questions becomewhether other diseases give rise to the same disruptions and inefficienciesas pregnancy and whether any distinction exists between these other dis-eases and pregnancy that would justify different treatment. While diseasesand accidents can produce disruption of activities and impairment of effi-ciency just like pregnancy, the distinguishing aspect of pregnancy is thatit results from a course of voluntary behavior which makes the impendingloss of efficiency predictable. In contrast, the presence of disease or theoccurrence of an accident is usually not known until incapacitating symp-toms are present. Thus the state cannot force the victims of disease andaccident to take leave before the decreased efficiency and other disruptivesymptoms have already caused the damage which a pregnancy leave ruleis designed to prevent.

For purposes of analysis there remains a small but important classof medical ailments such as cateracts or prostate troubles which, althoughcontracted involuntarily, nevertheless give prior warning of impending in-efficiency and disruptive medical consequences. Evidence whether this pre-cise class of diseases differs from pregnancy has relevance to the equalprotection claim, for it is only with respect to this limited class of diseasesthat pregnant women receive different treatment. The pregnancy leavecases have failed to focus on this precise question and only speculationexists whether the ultimate inefficiency and disruption brought about bya gradually debilitating disease is precisely predictable at some future dateand thus distinguishable from complications arising out of pregnancywhich develop unexpectedly throughout the term.8

4 It may well be thatfew employees faced, for example, with blindness or cancer would chooseto remain on the job and undergo the catastrophic physical consequenceswhich would accompany inefficiency. In the cases of illness with longterm predictable effects, the state might well conclude that the drastic per-sonal consequences of not taking leave make it probable that each affected

83 See e.g., Brief for Petitioner at 98a, 99a, 103a, 109a,-118a, La Fleur v. Cleveland Bd.of Educ., 465 F.2d 1184 (6th Cir. 1972).

84id.

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employee will voluntarily go on leave before the state's efficiency interest

is threatened. In the case of pregnancy, many medical complications are

often temporary and are insufficient to insure that all pregnant employees

will take leave before inefficiency and disruption set in. This rational

distinction could, perhaps, be supported with medical evidence, but to date

none has been produced. Curiously though, the very fact that pregnancy

leave is mandatory may indicate that pregnant employees will not leave

voluntarily. Thus the classification created by the terms of the statute

may support the view that the personal consequences of pregnancy aretemporary and less drastic to the employee than those presented by long

term disease, although each presents a similar threat to the state interest

in efficient employees and minimization of disruption. 5 The pregnancyleave rule is a rational tool for preventing pregnant persons from saddlingthe state with the effects of their pregnancy,-effects which seldom threat-

en serious permanent harm to the pregnant individual. Unfortunately,the cases do not focus on the issue and none cite evidence relevant toit.

A lesson may be learned from this failure, for whenever a rule or

statute is attacked under the rationality test of the "newer" equal protec-

tion, the party defending the statute must stay close to he obvious purpose

suggested by its terms. The suggestion that a pregnancy leave rule, rather

obviously designed to force pregnant persons to take leaves they wouldnot otherwise take, is related to the health of the mother, or the prevention

of snide remarks, or having an identifiable date upon which to replaceher can only invite disaster. 6 Under the newer equal protection, attorneysmust decipher the real purpose of the statute directly from its terms and

then gather evidence to support the reasonableness of the classification cre-ated. Casting around for all sorts of imaginary and marginal purposes

simply will not save a statute and will often serve to arouse judicial suspi-cions of invidious purposes. In addition, it is often a simple matter todemonstrate lack of rationality to such marginal purposes.

Analytical parallels to the pregnancy leave rule can be seen in statutes

which require public employees to retire at age sixty-five and in statuteswhich forbid minors to marry, vote, work, or drive. In these statutes thestate applies a conclusive presumption of senility to those reaching sixty-five and a conclusive presumption of immaturity to those under the ageof eighteen. For the sake of convenience, the state treats all membersof each class alike and does not hold senility or immaturity hearings for

85 This follows despite absences of recollection to this effect by actual draftsmen of these

rules. See testimony of Dr. Mark Shinnerer, Brief for Petitioner, at 166a-88a, La Fleur v.Cleveland Bd. of Educ., 465 F.2d 1184 (6th Cir. 1972).

86 The testimony of Dr. Shinnerer can only be disasterous in light of the judicial aversion

to moral prudery in legislative acts concerning contraceptives, abortion, and reproduction in

general.

[Vol. 34

NOTES

the individuals involved. If the pregnant employee has the right to betreated as an individual, then arguably, the same right should be extendedto the aged and the adolescent. The fact that "many" persons could per-form efficiently until age eighty-five probably will not deprive the stateof power to treat all sixty-five year olds equally, provided the state canshow that many do lose efficiency at this age. The same argument appliesto adolescents. A state is not required to accept the word of a twelveyear old or his physician that he is capable of driving, working, marrying,or voting. The state will always have the power to stereotype twelve yearolds and treat each of them as if they conform to the adolescent norm.

An intuitive or normative weakness in the claim of aged or adolescentpersons to individual treatment stems from the fact that some stereotypesare useful. Legislative assumptions that no one under eighteen will voteintelligently, or that all persons above the age of sixty-five are inefficient,or that all murderers deserve life sentences, or that job applicants withcollege degrees will be the more competent employees, represent usefulcodifications of experience. In each case, the severe injustice placed uponindividuals who do not fit the mold is tolerated for lack of more accuratemethods of ascertaining individual qualities.

But in one crucial respect, pregnancy leave differs from the equal pro-tection claims of the aged and the adolescent. Many individuals abovethe age of eighteen are immature and many under the age of sixty-fiveare inefficient. The adolescent and the aged are thus treated unequallywith respect to conditions occurring in the unregulated class of middleage. Under these facts, a clear equality injury is shown. But if this werenot the case, if senility and immaturity could never occur between theages of eighteen and sixty-five, then laws which stereotype by age couldnot produce any equality injury or offend any equality interest. This dis-tinction highlights the most significant aspect of the pregnancy leave case,for if senility and immaturity never occurred in the middle ages, thenthe adolescent and the aged could not show any equality injury arisingout of such statutes.

V. EQUALITY INJURIES AND THE

CONCEPT OF EQUAL PROTECTION

All legislation burdens some classes and confers benefits upon others.Those who suffer statutory burdens have a minimum claim that the statutebear a reasonable relation to a state purpose. "And the guarantee of dueprocess, as has often been held, demands only that the law shall not beunreasonable, arbitrary, or capricious, and that the means selected shallhave a real and substantial relation to the object sought to be attained.""7

With a substantive du6 process attack upon economic regulations pre-8 7 Nebbia v. New York, 291 U.S. 502 (1934).

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OHIO STATE LAW JOURNAL [Vol. 34

cluded after 193788 plaintiffs resorted to the equal protection clause,89 anda similar rational basis standard was developed in order to preclude attacksupon regulatory statutes. "The constitutional safeguard of equal protectionis offended only if the classification rests on grounds wholly irrelevant tothe achievement of the state's objective. . . .A statutory discriminationwill not be set aside if any state of facts reasonably may be conceivedto justify it."90 Due to the improbability of successful attack under thisminimal rational relation equal protection standard,9 no theoretical distinc-tion between the respective injuries necessary to support due process attacksand equal protection attacks has formally developed in the case law.- Pre-sumably, however, any injury will give rise to a due process claim, whileonly equality injuries will support an equal protection claim.

The land mark equal protection cases upholding statutes under theminimal rationality standard, give a rather uniform picture of the typesof equality interests which will produce an equal protection claim.92 Ineach of these cases, the complaining party was treated unequally with re-spect to a condition shared by an unregulated class which received a dis-tinct competitive advantage. Characteristically, the equality injury couldbe remedied by broadening the classification to include others similarlysituated with respect to the states interest. Although it would be morevaluable to the plaintiffs if the judiciary would preclude state regulationin the field as a matter of substantive due process, it is nevertheless inthe plaintiffs' interests to remove from the statute books classificationswhich confer advantages upon competitors.

88 McCloskey, Economic Due Process and, the Supreme Court: An Exhumation and Reburial,1962 SuP. CT. REV. 34, 38.

89 McGowan v. Maryland, 366 U.S. 420 (1961); Morey v. Doud, 354 U.S. 457 (1957);Williamson v. Lee Optical, 348 U.S. 483 (1955); Daniel v. Family Security Life Ins. Co., 336U.S. 220 (1949); Goessart v. Cleary, 335 U.S. 464 (1948); Railway Express Agency v. NewYork, 336 U.S. 106 (1949).

9 0 McGowan v. Maryland, 366 U.S. 420 (1961).9 1 Morey v. Doud has been the only equal protection attack to succeed.92 In Railway Express Agency v. New York, 336 U.S. 106 (1949), the statute under

attack permitted advertising on the side of trucks relating to the business of the owner, butprohibited such advertising for hire. The under inclusiveness of the classification with respectto the state interest in eliminating distractions gave companies owning their own trucks anadvantage over carriers for hire who rented space on the side of their vehicles. The statuteattacked in Williamson v. Lee Optical, 348 U.S. 483 (1955), prohibited fitting glasses exceptupon prescription of a licensed optometrist or physician, but exempted sale of ready to wearglasses if selection was at the discretion of the purchaser. The under inclusiveness createdby the exemption gave ready to wear producers a competitive advantage over opticians similarlysituated with respect to the evils of unprescribed eyewear. In Morey v. Doud, 354 U.S.457 (1957), an Illinois statute placed a myriad of restrictions upon sellers of money ordersbut exempted American Express by name. The under inclusive classification, created becauseof American Express' financial stability, gave the company an accute advantage over its competitorsin the money order business. McGowen v. Maryland, 336 U.S. 420 (1961), involved aMaryland statute forbidding Sunday sales but exempting a long list of items and activities.The under inclusive classification put the convicted retailer at a distinct competitive disadvantageto others similarly situated but exempted, as part of an effort to curb the evils of Sundaysales.

NOTES

If, in the case of the restrictions imposed upon adolescents and theaged, immaturity and inefficiency were absolutely unknown among themiddle-aged, then it would be impossible for the legislature to remedyinequality by broadening the classifications created, that is, to broaden thepertinent statute to include the middle-aged. Although the middle-agedwould enjoy an advantage over the young and the old, this advantagewould not be one unequally granted by the statute, and an equal protectionremedy would be powerless to remove the advantage. Irrespective ofwhether the laws impose burdens on all immature and inefficient personsas individuals or presume an equal distribution of the undesirable qualitiesthroughout the respective classes, the classes still bear their burdens with-out the aid of any equal protection claim with respect to the classificationof middle age.

The only equality injury of which the adolescent or aged could com-plain would be the over inclusiveness of the classification. Mature adoles-cents and competent aged persons are treated the same as the immatureand senile within their respective age groups. However, the over inclusiveclassification does not produce any equality injury between the regulatedand unregulated classes as a whole. Although, for example, mature ado-lescents might wish to be treated equally with adults, nevertheless, thestatutory classification depends upon the probability of immaturity amongall individuals comprising the class, and thus the mature adolescent couldnot show any equality injury between the classification into which he hasbeen put and the unregulated class of adults. The mature adolescent couldclaim that the classification of adults should be broadened to include him,but this argument for narrowing the regulated class would necessarily relyon the equality interests of sub-sets of persons within the statutory classifi-cation as a whole. Thus under our assumption that immaturity and inef-ficiency never occur within the unregulated classes, no equality interestexists which will justify broadening the classification nor can any be foundto justify narrowing it.

The overbreadth situation presents policy considerations which militateagainst judicial cognizance of an equal protection claim. An overbroadclassification is all that can be required of the legislature in terms of expos-ing itself to political retribution. Any judicial attempt to narrow the classi-fication could not make it more just from a legislative perspective.93 Since

93 The concurrence of Justice Jackson in Railway Express v..New York, 336 U.S. 106(1944), supports this point.

The burden should rest heavily upon one who would persuade us to use the DueProcess Clause to strike down a substantive law or ordinance. Even its provident useagainst municipal regulations frequently disables all government-state, municipal andfederal-from dealing with the conduct in question because the requirement of DueProcess is also applicable to State and Federal Governments. Invalidation of a statuteor an ordinance on Due Process grounds leaves ungoverned or ungovernable conductwhich many people find objectionable.

Invocation of the Equal Protection Clause, on the other hand, does not disable the

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a legislature always incurs more than the required minimum of electoraldisfavor when it classifies overbroadly, one must presume that no practicalalternative classification existed or that the legislature sought to achievesome overriding equality value within the regulated class. It is not hardto imagine that the state interest in treating all sixteen year olds equallywith respect to voting, drinking, driving, working and marrying more thanjustifies the unfairness to atypical individuals. This same state interest

behind the overinclusive pregnancy leave rule was suggested in rather un-chivalrous terms by the Schattman court when it suggested that a flexiblerule would cause jealousy and recrimination."

In the pregnancy leave rule situation, the court cannot broaden theclassification since it already applies to all pregnancies. There is no com-petitive advantage which judicial broadening could possibly take away. Theargument that each pregnancy must be treated on an individual basisamounts to a claim that the classification must be narrowed to the pointwhere it ceases to exist. This amounts to an effective substitute for sub-stantive due process; the requested relief prevents the state from classifyingat all with respect to a condition which threatens state interests.

Non-pregnant employees do not receive any competitive advantagefrom the operation of a pregnancy leave rule. Their pay does not increase,their initial employment prospects are not improved, nor do they gainseniority for promotion purposes. If the pregnancy leave rule is struckdown, the competitive interests of non-pregnant teachers do not changein the slightest degree. They lose no advantage because none was con-ferred, and they could care less whether the rule survives. In sharp con-trast, the demise of the sex classification in Goesaert v. Cleary would haveplaced the male bartender's union in a far worse position. Justifiably,they would have lost a statutory monopoly advantage, with a lower wagerate and possible unemployment at the margin. Similarly, in Reed, themales lost their guaranteed competitive edge over women when the classi-fication according to sex was held unconstitutional. Thus, the claim toindividual treatment in the pregnancy leave case should not be confused

governmental body from dealing with the subject at hand. It merely means that theprohibition or regulation must have a broader impact. I regard it as a salutary doctrinethat cities, states, and the Federal Government must exercise their powers so as notto discriminate between their inhabitants except upon some reasonable differentiationfairly related to the object of regulation. This equality is not merely abstract justice.The framers of the Constitution knew, and we should not forget today, that there isno more effective practical guarantee against arbitrary and unreasonable governmentthan to require that the principles of law which officials would impose upon a minoritymust be imposed generally. Conversely, nothing opens the door to arbitrary action soeffectively as to allow those officials to pick and choose only a few to whom they willapply legislation and thus to escape the political retribution that might be visited uponthem if larger numbers were affected. Courts can take no better measure to assurethat laws will be just than to require that laws be equal in operation.

Id. at 112-13.

94 459 F.2d 32, 39 (5th Cir. 1972).

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with the genuine equal protection claims of women to have their skillsevaluated on an individual basis when competing with males.

In order to present an equal protection claim, reliance must be placedupon the equality interests of the classification created. One simply cannotrely upon the equality interests of the class in order to narrow its applica-bility. If it could be shown that an overinclusive statute was legislativelyinvidious, then a member of the class ought to be able to rely upon adue process right to escape from invidious burdens. But invidiousnessalone ought not trigger an equal protection claim unless the class candemonstrate an equality injury. 5 It would be somewhat illogical forcourts to recognize equal protection claims of individuals within an over-broad classification to be treated like members of an unregulated classwhich never experiences the regulated condition. 6 In the pregnancy leavecase there can be no rational method of narrowing the classification sincethe risk of sudden medical complications is spread uniformly throughoutthe class. Not only does the pregnant employee fail to demonstrate anymethod of subdividing the class with respect to the predictable risk of sud-den medical complications arising out of her condition, but she cannotshow any equality injury since non-pregnant persons never share theserisks.

On the other hand, there is a line of cases which take cognizanceof the equal protection claims of underinclusive classifications whereneither class gains any advantage over the other. This unique equalityinterest was recognized in the cases which ordered "separate but equal"golf courses and swimming pools integrated. 7 Although whites realizeno competitive advantage from the separate facilities, the Court found thatisolation by race stygmatized the black race and branded them as secondclass citizens. This psychic injury was sufficient to sustain an equal protec-

9 5 As a matter of fact, most racial classifications are underinclusive and over inclusive atthe same time with respect to the same state interest. For example, a statute denying thevote to blacks is under inclusive with respect to the interest in assuring qualified electorssince many whites are not qualified. It is over inclusive with respect to the same interestsince many blacks are qualified. Thus the strongest inference of legislature invidiousnessarises whenever any classification is both under inclusive and over inclusive. An intelligentargument can be made that any classification which is over inclusive and under inclusive withrespect to the legislative purpose should be treated as suspect irrespective of the race of theclass affected or the geographic region of origin of the statute. It follows that suspect statusshould not be granted to discrete classes for all purposes of equal protection review. Thisparticular analytical mode would provide a neutral principle for expanding the applicabilityof the doctrine and would free it from the shackles of judicial ideology.

96 While discussing the problem of overinclusiveness in Tussman and TenBroek, The EqualProtection of the Laws, 37 CAL. L. REV. 341, 351-52 (1949), the authors note that thecourts have preferred to deal with over inclusiveness in due process terms but argue thatequal protection should cover the 'situation. To the contrary, in those admittedly rare casesof pure overinclusion, the classification is premised upon the uniform distribution of a particularrisk to state interests within the class. There is no rational way in whch to narrow thatclassification since all members are subject to the same risk.

97 Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955); Holmes v. Atlanta, 350 U.S.879 (1955); New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958).

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tion claim to a broadening of the racial classifications contained in theseparate but equal ordinances. If, however, whites were inherently inca-pable of playing golf, it would be hard to argue that state maintenanceof a golf course (or the failure to maintain one) would stygmatize blacks.It is only when races are treated separately with respect to the same condi-tions that the psychic injury may arise. For example, if all blacks wererequired to take a test for sickle cell anemia, an equal protection attackupon the statute should fail. The statute would be overinclusive withrespect to its purpose of detecting sickle cell anemia since many of theindividuals within the regulated class do not posses the trait. But theclass as a whole could not show any equality injury. Only the irrationalor hypersensitive could argue that such a law would stygmatize the class.Broadening the classification to make all persons undergo such tests wouldbe irrational, since the condition never occurs among whites. Thus anycomplaint against the statute would have nothing to do with the equalityinterests of the classification created, and members of the class could onlyargue that the regulation deprived them of due process of law. If thesickle cell anemia law were passed with malevolent intent to burdenblacks, then it should be struck down on due process grounds, but theclassification would not necessarily share ,this invidiousness. In this casethe legislative purpose would. be invidious and a claim for relief shouldnot depend upon equality interests offended. In contrast, if the legislatureinvidiously created an underinclusive classification with respect to a permis-sible state purpose, then an equal protection claim arises, however, thehypothetical sickle cell anemia statute would give rise to no such claim.

In order to statisfy the skeptic, return to Lochner and assume thatthe same case were to arise today under the "newer equal protection."Lochner struck down a statute restricting hours of bakers as violative ofsubstantive due process. 8 But if the same facts were to arise after thepregnancy leave case, the original result could be achieved without resortto substantive due process. Very simply, Lochner could argue that thepurpose of the statute was to protect the health of workers, and that thelong hours of butchers and candlestick makers also threatened the stateinterest in a healthy labor force. Singling out bakers for hour limitationsshockingly and invidiously denies them equal protection of the laws. Attrial Lochner could stage an impressive array of doctors to testify thatthe health of bakery employees varied widely depending upon conditionsin the particular shop. Perhaps the expert for the state would concedethat each bake shop was sui generis and should be treated as such if pos-sible. Lochner could insist that he be treated as an individual and thatthe word of his physician on the health of his employees must be accepted

9 8 Lochner was overruled in Bunting v. Oregon, 243 U.S. 426 (1917).

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as long as butchers' and candlestick-makers' maximum hours were not reg-ulated.

Under this latter day Lochner hypothetical, the Court need never in-quire into the rationality, invidiousness, or "suspectness" of the classifica-tion, because Lochner has presented no equal protection claim at all.Broadening the classification to include butchers and candlestick makerswill not remove any statutory competitive advantage, nor will it benefitLochner in any way. Actually, he wants to be free of such restrictionshimself. He seeks to escape the burdens imposed upon an over-inclusiveclass and thus he forsakes any reliance upon the equality interests of theclass as a whole.

Thus stripped of his equal protection claim, this latter day Lochneris relegated to the status of a substantive due process claimant where heloses on the basis of stare decisis. Yet Lochner's equal protection claimis certainly no weaker than that of the pregnant public employee. It doesher absolutely no good to broaden the classification to force males to takepaternity leaves nor do these plaintiffs want mandatory leaves for illnesses.Rather, as an individual, each plaintiff seeks to escape the burdens imposedupon an overinclusive class. Any equality interest of the class from whichthey seek escape is thus irrelevant to their claims.

VI. CONCLUSION

Because the pregnancy leave rule deals precisely and narrowly withan avoidable condition it does not classify by sex. If sex classificationsare suspect, the resulting stringent standard of review cannot rationallybe applied to a pregnancy leave rule. But even if pregnancy leave rulesdo constitute sex discrimination, granting suspect classification status towomen cannot be justified. First, a discrete majority of the populationmay always protect itself through the legislative process if if is genuinelyrepressed. Thus women do not need judicial protection. Second, underthe limitations inherent in the concept of judicial review, legislative solici-atude for women's equality interests precludes, rather than mandates, judi-cial intervention. Finally, as a historical matter, the female legislativestereotype reinforced the values of the majority of women, and there isno evidence that a majority ever objected to the stereotype. For these rea-sons, sex classifications are completely inapposite to race, alienage, andnational origin. Although pregnancy leave rules do not classify by sexand although women do not merit suspect classifications treatment, theCourt may nevertheless strike the rule down if it fails to meet the morestringent rationality requirement of the newer equal protection. The dif-ference in treatment between pregnancy and illness will satisfy that testif it can be shown that victims of diseases with long term predictableeffects will voluntarily take leaves before any impairment of efficiency or

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disruptive conditions set in and if it can be shown that many women willnot take leave voluntarily before inefficiency and disruptive complicationsoccur. In all probability, however, the Court will be able to strike downthe statute by ignoring purposes, framing the purpose as a unitary value,and by manipulating the level of abstraction irrespective of whether thisshowing of rationality is made 9

The most novel and singular aspect of the pregnancy leave case arisesout of the fundamental inconsistency between the asserted equality intereftand the relief requested. Non-pregnant employees receive no competitiveadvantage from the rule and thus no inequality exists which can be curedby broadening the classification to force paternity leaves or to force sickleaves. Since women alone become pregnant, there can be no badge ofopprobrium which would justify per se invalidity of classifications by preg-nancy. Finally, since pregnant employees claim the right to have theirpregnancies treated on an individual basis, they are in fact seeking relieffrom a classification which is over-inclusive with respect to the state interestprotected. An individual claim to escape the classification created cannotdraw support from any equality interest possessed by that class.

If the court takes cognizance of an equal protection claim in the preg-nancy leave case, it will provide an equal protection claim whenever astatute imposes burdens or benefits. Under the old minimal rationalitystandard, this extension of equal protection sub-strata would have madelittle difference, but with the advent of the "newer equal protection" andthe higher rationality requirement, the results under the old substantivedue process cases will be attainable under the rubric of equal protection.Although this result may have ideological appeal, it is theoretically unto-ward. Thus, in the pregnancy leave case, the ultimate question whetherburdens imposed by pregnancy leave rules are reasonable in light of thealleged threat to state interests should be resolved by balancing under dueprocess rather than equal protection.

John D. Gardner

99 See Note, Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123,132-38 (1973).

Equal Protection and the Pregnancy Leave Case

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